ABSTRACT: Many judges, lawyers, and academics worry that the federal courts are
in serious trouble, plagued by high litigation costs, huge delays and
case backlogs, and unacceptable risks of frivolous litigation. These
complaints are not new; they began in a strong way about three decades
ago and have remained intense ever since. Whether the situation is as
serious as the critics claim—and there are certainly those who believe
the concerns are overblown—the widely shared perception that there are
problems has led to major changes in federal civil procedure over the
past three decades.

The Supreme Court’s recent decision in Bell Atlantic Corp. v. Twombly is one of the most controversial developments along these lines. Twombly
was a nationwide antitrust class action brought under Section 1 of the
Sherman Act alleging an anti-competitive conspiracy among the four
largest telecommunications companies in the United States. The Court
held that the plaintiffs failed to allege sufficient facts to support a
plausible inference of agreement and that as a result the district
judge properly dismissed the complaint. On a more general level, the
decision increases the pleading burden and in so doing makes it more
difficult for plaintiffs to gain access to federal courts.

I have written about Twombly
in a published article, and this short commentary draws on the analysis
I develop there. I will first briefly explain the decision’s impact and
then sketch the outlines of a policy critique.